BN66 - the road to Judicial Review

[Emigre]

Some weeks ago I was asking about Closure Notice and the fact that I had yet to receive one. I was guided to the HMRC FOI page which I duly completed. The good news is that HMRC actually replied without a threatening letter as their opening gambit. However, despite the 36 pages supplied the revealed nothing beyond the normal or ordinary. How can I find out if they have served me a closure notice which I have not received or should I just sit tight and not rouse the docile, money grabbing beast?

Any help or assistance would be warmly received...

<admin note>I have enabled PM use on this account in case needed</admin note>

Clearly, you don't want to wake a sleeping dog by asking them

You need to register to look at your account online. It will be obvious from there what the position is regarding your account. Also, if they had issued CNs that you have not received, you would not have appealed them and they would have sent the bailiffs round.

Have you received notice that any of your tax years are under investigation?

Good to see admin on the ball here

[DonkeyRhubarb]

Impartiality

The Treasury & HMRC are biased. We, Montpelier and their QC are biased.

However, the JCHR are totally impartial. They are made up of Labour, Tory, LibDem and cross bench MPs and Lords. The Chairman is a Labour MP.

Also, as I mentioned earlier, they know their stuff.
http://business.timesonline.co.uk/to...cle3758784.ece

If the JCHR remain steadfastly opposed to the legislation, then I think it's highly unlikely a Court of Law, presented with the same evidence, would reach a different conclusion.

[silver_lining]

In an earlier post, SliverLining posed the question as to what would happen if the JCHR recommended that the legislation is overturned ie. does the Government have to take any notice?

I think this gives us a clue:
http://www.aippg.net/forum/viewtopic.php?t=82469

Joint Parliamentary Committee on Human Rights as well as Commission for Race Equality had looked into the issue and submitted to the government that the changes were unfair and unlawful. However, the immigration department was obsessed with defending their decision and were not open to any reasoning. We had no other recourse but to approach the judiciary and we are glad that our trust in the Democratic System has finally been restored.

We should expect the Treasury to be equally intransigent.

Thanks DR, a little annoying but there ya go. IMHO they are going to at least try an follow the same line. I have a suspicion they may be able to hide behind some legal line to enable them to withhold anything that may compromise JR. Not sure if they can do this though, given it is now part of parlimentry/ public debate coupled with the face they appear not to have followed due process with the bill i.e. JCHR review. Some questions they must have to answer. This leads me to another interesting question, the JCHR mention, in respect of HRA there 'may' be an arguement for Article 1.... this does suggest somewhat that JCHR have not subsequently reviewed the Bill/ Leglistation in detail.... i.e. carried out, pardon the pub, a restrospective analysis of the original bill ? Do you know DR if this is the case?

Also it would be great if Gauke was all over this raising the question again in public to Timms et al.....

keep on gnawing..
SL

[DonkeyRhubarb]

This leads me to another interesting question, the JCHR mention, in respect of HRA there 'may' be an arguement for Article 1.... this does suggest somewhat that JCHR have not subsequently reviewed the Bill/ Leglistation in detail....

I think this answers your question:

http://www.publications.parliament.u...3/13304.htm#a5

We cleared last year's Finance Bill from scrutiny without raising any human rights concerns with the Government. No representations were received at the time about the retrospectivity of the relevant provision and nothing was received from the Government identifying the provision as having retrospective effect and explaining the Government's justification for such retrospectivity. Finance Bills are invariably lengthy and highly technical in nature. In the absence of a memorandum or representations from those directly affected, it is almost impossible to identify provisions which raise human rights questions in such bills in the time available.

1.24 We recommend that in future the Government provide our Committee with a Memorandum accompanying the Finance Bill, identifying any provisions in the Bill which have retrospective effect, together with an assessment of the impact of the retrospective provision and a detailed explanation of the justification for the retrospectivity.

[smalldog]

I think this answers your question:

http://www.publications.parliament.u...3/13304.htm#a5

We cleared last year's Finance Bill from scrutiny without raising any human rights concerns with the Government. No representations were received at the time about the retrospectivity of the relevant provision and nothing was received from the Government identifying the provision as having retrospective effect and explaining the Government's justification for such retrospectivity. Finance Bills are invariably lengthy and highly technical in nature. In the absence of a memorandum or representations from those directly affected, it is almost impossible to identify provisions which raise human rights questions in such bills in the time available.

1.24 We recommend that in future the Government provide our Committee with a Memorandum accompanying the Finance Bill, identifying any provisions in the Bill which have retrospective effect, together with an assessment of the impact of the retrospective provision and a detailed explanation of the justification for the retrospectivity.

Its just slapped me across the face that all of this is actually making the government having to do things differently in future. We are making history ladies and gents...If nothing else, we are helping to protect the future integrity of the system by having procedural changes applied to the way the government must do certain things...amazing stuff..

[deckster]

If the JCHR remain steadfastly opposed to the legislation, then I think it's highly unlikely a Court of Law, presented with the same evidence, would reach a different conclusion.

This is true and leads to an important point which may have been lost in the euphoria. I believe, and HMRC has pointed out, that the best result we can expect from a JR (and the JCHR) is a declaration that the legislation is incompatible with the HRA. Neither body, unless anybody knows differently, has the power to force a repeal of the retrospective elements of S.58.

So, assuming that we obtain such a declaration, and the government chooses to ignore it, what is our next step? Given a definitive breach of the HRA, can the ECHR force a change in the law? Do we depend on a general election and a new Conservative government acknowledging (and remedying) said breach? In short - we know for sure that we are not going to get a change in the law unless this government is forced into it. What, if any, bodies are there that can do that?

[Lazylobster]

Its just slapped me across the face that all of this is actually making the government having to do things differently in future. We are making history ladies and gents...If nothing else, we are helping to protect the future integrity of the system by having procedural changes applied to the way the government must do certain things...amazing stuff..

The interesting aspect of all of this from my point of view is how technology and the power of the web have empowered people to take on these issues. Otherwise, we would have all been awaiting for snail mail updates, becoming depressed and ultimately swinging from a rope.

The tide is turning and the man in the street does have a voice.

LL

[Emigre]

Its just slapped me across the face that all of this is actually making the government having to do things differently in future. We are making history ladies and gents...If nothing else, we are helping to protect the future integrity of the system by having procedural changes applied to the way the government must do certain things...amazing stuff..

Given all the disrepute heaped on Parliament by the expenses fiasco and the poor standard of drafting of legislation exemplified by this Government I would like to see a new Government grab the nettle and accept that there is no case ever for retrospective taxation and thus to not just endorse the Rees Rules but strengthen them.

Simply, there is no reason why any tax loophole should not be closed prospectively and past years claims challenged through the Courts. The onus should be on Government to consult and draft legislation properly the first time and not get a second bite of the cherry, at someone else's expense, when they get it wrong. Only they can know what they are trying to achieve with new legislation. The legislation itself needs to be clear enough about its intent so that those targeted by it are left in no doubt as to its interpretation or left to guess.

However it is applied, retrospection deprives people of the right to manage their affairs in any other way that may have been available at the time. There is no place in a free and civilised society for that style of Government intervention.

[robinhood]

This is true and leads to an important point which may have been lost in the euphoria. I believe, and HMRC has pointed out, that the best result we can expect from a JR (and the JCHR) is a declaration that the legislation is incompatible with the HRA. Neither body, unless anybody knows differently, has the power to force a repeal of the retrospective elements of S.58.

So, assuming that we obtain such a declaration, and the government chooses to ignore it, what is our next step? Given a definitive breach of the HRA, can the ECHR force a change in the law? Do we depend on a general election and a new Conservative government acknowledging (and remedying) said breach? In short - we know for sure that we are not going to get a change in the law unless this government is forced into it. What, if any, bodies are there that can do that?

Don't think it would be easy for the Government to ignore a clear breach of HRA..

Section 6 - Human Rights Act
6.1 The Human Rights Act 1998 is an Act of the Westminster Parliament and
came into force on 2 October 2000. The Act has the effect of incorporating the
European Convention on Human Rights (ECHR) into domestic law.
6.2 The Human Rights Act:
• makes it unlawful for a public authority to act incompatibly with the
Convention rights and allows for a case to be brought in a UK court or
tribunal against the authority where it does so. However, a public authority
will not have acted unlawfully under the Act if as the result of a provision
of primary legislation it could not have acted differently.
• requires that all legislation be interpreted and given effect as far as
possible compatibly with the Convention rights. Where it is not possible to
do so, a court may:
- quash or disapply subordinate legislation or
- if it is a higher court, give a declaration of incompatibility for
primary legislation thereby triggering a new power allowing a
Minister to make a remedial order to amend the legislation to
bring it into line with the Convention rights.
- requires UK courts and tribunals to take account of the case-law
of the Court and the Commission in Strasbourg and also the
Committee of Ministers. They will also be bound to develop the
common law compatibly with the Convention rights.

[smalldog]

Given all the disrepute heaped on Parliament by the expenses fiasco and the poor standard of drafting of legislation exemplified by this Government I would like to see a new Government grab the nettle and accept that there is no case ever for retrospective taxation and thus to not just endorse the Rees Rules but strengthen them.

Simply, there is no reason why any tax loophole should not be closed prospectively and past years claims challenged through the Courts. The onus should be on Government to consult and draft legislation properly the first time and not get a second bite of the cherry, at someone else's expense, when they get it wrong. Only they can know what they are trying to achieve with new legislation. The legislation itself needs to be clear enough about its intent so that those targeted by it are left in no doubt as to its interpretation or left to guess.

However it is applied, retrospection deprives people of the right to manage their affairs in any other way that may have been available at the time. There is no place in a free and civilised society for that style of Government intervention.

I think its a cunning stunt on their part to extract more money than they would with prospective legislation. with retrospective they can charge interest and penalties making them more dosh..The more times they can apply retro the more money they make in interest...In fact they could and probably would adopt this approach more and more as it swells their coffers..